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the United States, as well as many other points, are discussed and decided.
of the Circuit Court, dismissing the writ of habeas corpus, is right and must be affirmed." Mr. Justice BREWER dissented.
3f. OTHER POINTS INVOLVED. The decision in the case of Fony Yue Ting vs. United States (Second Chinese Exclusion Case), 149 U. S. 698, GRAY, J., just above cited from was so emphatic and far-reaching that it forever settled the question that Congress can exclude and expel aliens of any nation and that it can do so practically without regard to treaty stipulations, leaving that element for adjustment by the Executive Department of the Government.
Other questions have, however, arisen in regard to the enforcement of the exclusion statutes and the Supreme Court has been called upon to construe them in regard to many of their details.
39. DELEGATION OF AUTHORITY BY CONGRESS. Lem Moon Sing vs. United States, 1893, 158 U. S. 538, HARLAN, J.
In this case the Supreme Court sustained the constitutionality of the act of 1894, declaring that the decision of the immigration or customs officers as to the right of Chinese to enter the United States is final unless reversed by the Secretary of the Treasury, and that the court cannot review it. The opinion says, on p. 547:
“ The power of Congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications. Is a statute passed in execution of that power any less applicable to an alien, who has acquired a commercial domicil within the United States, but who, having voluntarily left the country, although for a temporary purpose, claims the right under some law or treaty to re-enter it? We think not. The words of the statute are broad, and include every case of an alien, at least every Chinese alien, who, at the time of its passage, is out of this country, no matter for what reason, and seeks to come back. He is none the less an alien because of his having a commercial domicil in this country. While he lawfully remains here he is entitled to the benefit of the guaranties of life, liberty, and property, secured by the Constitution to all persons, of whatever race, within the jurisdiction of the United States. His personal rights when he is in this country and such of his property as is here during his absence, are as fully protected by the supreme law of the land as if he were a native or naturalized citizen of the United States. But when he has voluntarily gone from the country, and is beyond its jurisdiction, being an alien, he cannot reenter the United States in violation of the will of the government as expressed in enactments of the law-making power. He cannot, by reason of his domicil in the United States, for purposes of business, demand
$ 381. Summary of decisions in cases involving congressional legislation as to Chinese immigration. The num
that his claim to re-enter this country by virtue of some statute or treaty, shall be determined ultimately, if not in the first instance, by the courts of the United States, rather than exclusively and finally, in every instance, by executive officers charged by an act of Congress with the duty of executing the will of the political department of the government in respect of a matter wholly political in its character. He left the country subject to the exercise by Congress of every power it
possessed under the Constitution."
It is well to note, however, the following qualification on p. 549:
“ To avoid misapprehension, it is proper to say that the court does not now express any opinion upon the question whether, under the facts stated in the application for the writ of habeas corpus, Lem Moon Sing was entitled, of right, under some law or treaty, to re-enter the United States. We mean only to decide that the question has been constitutionally committed by Congress to named officers of the executive department of the government for final determination."
3h. RIGHT OF JURY TRIAL. Wong Wing vs. United States, 1896, 163 U. S. 228, SHIRAS, J.
In this case the Supreme Court held that aliens within the United States were entitled to the protection of the Fifth Amendment and that Chinese could not be imprisoned under the act of May 5, 1892, by a commissioner without trial by jury. On page 237 the opinion says:
“Our views upon the question thus specifically pressed upon our attention, may be briefly expressed thus: We regard it as settled by our previous decisions that the United States can, as a matter of public policy, by Congressional enactment forbid aliens or classes of aliens from coming within their borders, and expel aliens or classes of aliens from their territory, and can, in order to make effectual such decree of exclusion or expulsion, devolve the power and duty of identifying and arresting the persons included in such decree, and causing their deportation, upon executive or subordinate officials.
“ But when Congress sees fit to further promote such a policy by subjecting the persons of such aliens to infamous punishment at hard labor or by confiscating their property, we think such legislation, to be valid, must provide for a judicial trial to establish the guilt of the accused.
“No limits can be put by the courts upon the power of Congress to protect, by summary methods, the country from the advent of aliens whose race or habits render them undesirable as citizens, or to expel such if they have already found their way into our land and unlawfully remain therein. But to declare unlawful residence within the country to be an infamous crime, punishable by deprivation of liberty and property, would be to pass out of the sphere of constitutional legislation, unless provision were made that the fact of guilt should first be established by a judicial trial. It is not consistent with the theory of our government that the legislation should, after having defined an offense
erous cases cited in the notes to this and the preceding sections on this subject show that the important legal
as an infamous crime, find the fact of guilt and adjudge the punishment by one of its own agents."
3i. THE CHINESE BABY CASE; CITIZENSHIP BY BIRTH. United States vs. Wong Kim Ark, 169 U. S. 649, U. S. Sup. Ct. 1898, GRAY, J.
This case involved the citizenship of a Chinaman. It is sometimes referred to as the “Chinese Baby Case" as Wong Kim Ark claimed citizenship under the Fourteenth Amendment because he was born here, and that notwithstanding the fact of his parentage, he could not be deprived of his citizenship, even though his parents could not be naturalized. After a visit to China he was detained on his return to the United States under the exclusion statutes and had he not been a citizen he would have been excluded. The syllabus says (p. 649): “A child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution, 'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.'"
FULLER, Ch. J., wrote a dissenting opinion in which HARLAN, J., concurred. The two opinions (about eighty pages in all), contain an exhaustive review of the law of citizenship in the United States especially as affected by the Fourteenth Amendment. All of the cases are reviewed, both American and English.
After referring to the general principles involved, the relations of China and this country and the effect of the exclusion, and other, acts affecting Chinese are discussed; the opinion closes as follows (699, 705):
“ The acts of Congress, known as the Chinese Exclusion Acts, the earliest of which was passed some fourteen years after the adoption of the Constitutional Amendment, cannot control its meaning, or impair its effect, but must be construed and executed in subordination to its provisions. And the right of the United States, as exercised by and under these acts, to exclude or to expel from the country persons of the Chinese race, born in China, and continuing to be subjects of the Emperor of China, though having acquired a commercial domicil in the United States, has been upheld by this court, for reasons applicable to all aliens alike, and inapplicable to citizens, of whatever race or color. Chae Chan Ping vs. United States, 130 U. S. 581; Nishimura Ekiu vs. United States, 142 U. S. 651; Fong Yue Ting vs. United States, 149 U. S. 698; Lem Moon Sing vs. United States, 158 U. S. 538; Wong Wing vs. United States, 163 U. S. 228. “In Fong Yue Ting vs. United States, the right of the United States to
principles established by the decisions in regard to Chinese immigration, and the joint construction of treaty stipulations
expel such Chinese persons was placed upon the grounds, that the right to exclude or expel all aliens, or any class of aliens, absolutely or upon certain conditions, is an inherent and inalienable right of every sovereign and independent nation, essential to its safety, its independence and its welfare; that the power to exclude or to expel aliens, being a power affecting international relations, is vested in the political departments of the government, and is to be regulated by treaty or by act of Congress, and to be executed by the executive authority according to the regulations so established, except as the judicial department has been authorized by treaty or by statute, or is required by the paramount law of the Constitution, to intervene; that the power to exclude and the power to expel aliens rest upon one foundation, are derived from one source, are supported by the same reasons, and are in truth but parts of one and the same power; and, therefore, that the power of Congress to expel, like the power to exclude aliens, or any specified class of aliens, from the country, may be exercised entirely through executive officers; or Congress may call in the aid of the judiciary to ascertain any contested facts on which an alien's right to be in the country has been made by Congress to depend. 149 U. S. 711, 713, 714.
“ In Lem Moon Sing v. United States, the same principles were reaffirmed, and were applied to a Chinese person, born in China, who had acquired a commercial domicil in the United States, and who, having voluntarily left the country on a temporary visit to China, and with the intention of returning to and continuing his residence in this country, claimed the right under a statute or treaty to re-enter it; and the distinction between the right of an alien to the protection of the Constitution and laws of the United States, for his person and property while within the jurisdiction thereof, and his claim of right to re-enter the United States after a visit to his native land, was expressed by the court as follows: (quotes from this case paragraph which appears on p. 107, ante).
"It is true that Chinese persons born in China cannot be naturalized, like other aliens, by proceedings under the naturalization laws. But this is for want of any statute or treaty authorizing or permitting such naturalization, as will appear by tracing the history of the statutes, treaties and decisions upon that subject—always bearing in mind that statutes enacted by Congress, as well as treaties made by the President and Senate, must yield to the paramount and supreme law of the Constitution.
“The power, granted to Congress by the Constitution, 'to establish an uniform rule of natyralization,' was long ago adjudged by this court to be vested exclusively in Congress. Chirac v. Chirac, (1817) 2 Wheat. 259. For many years after the establishment of the original Constitution, and until two years after the adoption, of the Fourteenth Amendment, Congress never authorized the naturalization of any but free white persons.' Acts of March 36, 1790, c. 3, and January 29,
and congressional statutes, are that the United States, in its national capacity, and by virtue of its attributes of sover
1795, c. 20; 1 Stat. 103, 414; April 14, 1802, c. 28, and March 26, 1804, c. 47; 2 Stat. 153, 292; March 22, 1816, c. 32; 3 Stat. 258; May 26, 1824, c. 186, and May 24, 1828, c. 116; 4 Stat. 69, 310. By the treaty between the United States and China, made July 28, 1868, and promulgated February 5, 1870, it was provided that nothing herein contained shall be held to confer naturalization upon citizens of the United States in China, nor upon the subjects of China in the United States.' 16 Stat. 740. By the act of July 14, 1870, c. 254, § 7, for the first time, the naturalization laws were extended to aliens of African nativity and to persons of African descent.' 16 Stat. 256. This extension, as embodied in the Revised Statutes, took the form of providing that those laws should 'apply to aliens [being free white persons, and to aliens] of African nativity and to persons of African descent;' and it was amended by the act of February 18, 1875, C. 80, by inserting the words above printed in brackets. Rev. Stat. (2d ed.) § 2169; 18 Stat. 318. Those statutes were held by the Circuit Court of the United States in California, not to embrace Chinese aliens. In re Ah Yup, (1878) 5 Sawyer, 155. And by the act of May 6, 1882, c. 166, § 14, it was expressly enacted that “hereafter no state court or court of the United States shall admit Chinese to citizenship.' 22 Stat. 61.
“In Fong Yue Ting vs. United States, (1893) above cited, this court said: 'Chinese persons not born in this country have never been recognized as citizens of the United States, nor authorized to become such under the naturalization laws.' 149 U. S. 716.
“ The convention between the United States and China of 1894 provided that Chinese laborers or Chinese of any other class, either permanently or temporarily residing in the United States, shall have for the protection of their persons and property all rights that are given by the laws of the United States to citizens of the most favored nations, excepting the right to become naturalized citizens.' 28 Stat. 1211. And it has since been decided, by the same judge who held this appellee to be a citizen of the United States by virtue of his birth therein, that a native of China of the Mongolian race could not be admitted to citizenship under the naturalization laws. In re Gee Hop, (1895) 71 Fed. Rep. 274.
“ The Fourteenth Amendment of the Constitution, in the declaration that all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside,' contemplates two resources of citizenship, and two only: birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States